Now that the barbecues and fireworks are done, I would like to spend a few minutes talking about the U.S. Constitution. So as not to be a complete wet blanket, I interviewed Dr. Kevin R. C. Gutzman, a historian who believes the country has gone to hell, constitutionally speaking.
“Iran has its mullahs who allow the ‘elected’ legislators to make laws and then decide what laws will really be allowed,” Gutzman said. “In the United States we have nine members of the academic elite from the Harvard and Yale law schools who make the same kinds of decisions. Often, they don’t base their decisions on what the Constitution says, they base them on their personal beliefs.”
As Gutzman says, he is “kind of a curmudgeon” on the issue. “I’m not very happy about it. The Constitution nowadays is a totem that you have to bow to, and then you do whatever you want.” He is a professor of History at Western Connecticut State University and the author of “Who Killed the Constitution?” and “James Madison and the Making of America.” He is working on a book about Thomas Jefferson.
Here is a general view of Gutzman’s thinking.
Originally, he says, the idea behind the Constitution was to dial back the federal government’s impulses. Congress would have more authority than the president. Bicameralism and its many representatives would have the natural effect of slowing down decisions. The rise of the executive branch, along with the Supreme Court’s interpretation of the 14th Amendment as allowing the imposition of national rules on the states, has led to our present situation.
“Today’s government has little association with the constitution, including the 14th Amendment, as originally written,” Gutzman says.
This debate of federal vs. states’ rights has been going on since the Constitution was ratified. George Washington and Alexander Hamilton were aligned with a more muscular Constitution. They were influenced by their experiences during the Revolution, when Washington had to rely on the individual states to send him money and manpower, which resulted in horrors for the under-resourced Continental Army like the starvation winter at Valley Forge.
On the other side were Thomas Jefferson and James Madison, who believed the Constitutional Convention of 1787 allowed the federal government to provide national protection against foreign enemies, for instance, but that it left most political decisions to the states.
Gutzman points out that during the ratification process after the Constitutional Convention, Hamilton argued in favor of a narrowly read Constitution. Once he became Washington’s Treasury secretary, however, he did an about-face.
“When he became treasury secretary and gained power, he took the position nearly everyone in Congress takes today: he said the constitution meant whatever he wanted it to mean. Most people in elite legal academia, and thus also in the federal judiciary, accept the Hamiltonian argument that Congress basically can do anything it wants — certainly in relation to the economy. If the people in office aren’t bound by the Constitution, it means nothing.”
Although the debate has been going on for 200 years, Gutzman says things really sped up for the pro-federal government types when Franklin Roosevelt tried to pack the Supreme Court after many of his New Deal policies were ruled unconstitutional. Although Roosevelt’s plan failed, Gutzman says the members of the court suddenly became much more approving of the president’s proposals.
“As a result, nowadays we’re used to the idea that the federal government will have a big role in things like the curriculum of your local schools,” he points out.
It doesn’t have to be this way, Gutzman says.
“One of the last things Madison did as president was to veto a bill he had asked Congress to pass to authorize the federal government to build roads, bridges and canals. He wanted a constitutional amendment to authorize it. Congress passed the authorization but didn’t amend the Constitution, so Madison vetoed it. Can you imagine a U.S. president doing that today? There’s no chance!”
A result of the transfer of so much power to the federal government, and particularly to federal courts, Gutzman says, is that people don’t think they have a say in how government works.
“America has a very low rate of voter turnout compared to other developed nations. The reason people don’t vote is they know their vote does not matter,” he argues. “Ultimately, it’s nine graduates of the Harvard and Yale law schools who will decide the law. Let’s be honest: people just don’t like it.”
There is something still great about America: Curmudgeons and the rest of us have the right to debate these big questions.
Paul Steinmetz is the director of Community Relations & Public Affairs at Western Connecticut State Universityhttp://www.wcsu.edu/ and the principal of Writing Associates, providing writing services to businesses and organizations.